Saturday, 13 June 2015

Whether daughter is entitled to get maintenance when she refuses to undergo DNA test?

In the present case, what the petitioner sought for is the blood sample of the 4th respondent to be examined with his blood sample to determine whether the 4th respondent is the biological daughter of the petitioner or otherwise. In view of the recent decision of the Supreme Court in NANDLAL WASUDEO BADWAIK (4 supra), it is clear that DNA Test is more or less accurate scientifically. The 4th respondent however declined to undergo such a test. I wholly agree with the contention of the learned counsel for the husband that the 4th respondent declined to undergo the DNA Test since the DNA would have shown that the petitioner was not the biological father of the 4th respondent. The learned counsel for the respondents submitted that there is no evidence that the petitioner has no access to the 1st respondent during the relevant period leading to the birth of the 4th respondent. In view of various decisions referred to, it is evident that in the event of conflict between Section 112 of the Evidence Act and the DNA Test, the DNA Test takes precedence. The respondents cannot approbate and reprobate at one and the same time, refusing to undergo DNA Test on the one hand and invoking Section 112 of the Evidence Act at the same time. The respondents thus have failed to show that the 4th respondent is the biological daughter of the petitioner. The respondents are bound to show that the 4th respondent is the biological daughter of the petitioner where the petitioner is disputing the same. When the respondents have failed to do so, an adverse inference deserves to be drawn against the respondents. Even otherwise, where the petitioner is disputing and contending that he is not the biological father of the 4th respondent and where the 4th respondent is not entitled to the benefits under Section 112 of the Evidence Act, when the respondents failed to prove their case, the 4th respondent is liable to be treated as not the biological daughter of the petitioner. Consequently, grant of maintenance in favour of the 4th respondent payable by the petitioner is certainly unjustified and cannot be permitted.

Andhra High Court
Achugatla Raju @ A.B.V.Raju vs Smt. Achugatla Sujana @ Shoba And 4 ... on 3 June, 2014
Citation;2015 CRLJ(NOC)212 HYD
The revision petitioner is the husband of the 1st respondent/wife. The 2nd respondent is his son. Respondents 3 and 4 are his daughters. The 1st respondent filed M.C.No.28 of 2009 before the Family Court, Mahabubnagar seeking maintenance for herself and for her 3 minor children. Through the impugned order dated 19-9-2011, Family Court granted maintenance at Rs.1,500/- per month in favour of the 1st respondent/wife and at Rs.1,000/- per head per month in favour of respondents 2 to 4, who are the children of the petitioner and the 1st respondent. Assailing the same, the present revision is laid.
2. Albeit the petitioner-husband questioned the entire case, he confined his claim to the maintenance awarded against his wife and against his 2nd daughter. So far as the wife is concerned, the contention of the husband is that the wife is a tailor, has her own earnings and is capable of maintaining herself, so much so, she is not entitled to maintenance. So far as the 2nd daughter (4th respondent herein) is concerned, it is the contention of the husband that the 2nd daughter is not his biological daughter and that he is not liable to pay maintenance to the 2nd daughter. Albeit he thus attributed unchastity to his wife so far as the 2nd daughter is concerned, he did not contend that his wife is not entitled to maintenance owing to her unchastity. His dispute regarding the right of the wife for maintenance is on the ground that the wife has been making her own earning and is not entitled to maintenance. It may also be noticed that the financial capacity of the husband and the quantum of maintenance awarded in favour of the wife, son and the daughters are not in question. I therefore do not deliberate upon these aspects.
3. The learned counsel for the husband submitted that he raised a contention before the Family Court that the 2nd daughter is not his biological daughter. He also submitted that he filed Crl.M.P.No.44 of 2010 before the Trial Court requesting the Court to send the 2nd daughter for DNA Test to establish his contention that the 2nd daughter is not his biological daughter. That objection was resisted by the wife. On 10-6-2010, the Trial Court dismissed the application. Questioning the same, the husband preferred Crl.R.C.No.1276 of 2010 before this Court. The High Court dismissed the revision, inter alia, holding that if the respondents are not willing for the DNA Test, the Trial Court can take adverse inference and that the Court could not compel the 2nd daughter to undergo DNA Test. Subsequently, M.C.No.28 of 2009 was disposed of.
4. It is the contention of the learned counsel for the husband that the Trial Court did not draw any adverse inference against the respondents albeit the respondents declined to submit the 2nd daughter for DNA Test. He placed reliance upon B.VANDANA KUMARI v. P.PRAVEEN KUMARin support of his contention. With reference to presumption under Section 112 of the Evidence Act, 1872, a learned Single Judge of this Court held that normally, the rule of evidence is that the burden is on the party who asserts the positive and that in respect of Section 112 of the Evidence Act, the burden is upon the party who pleads the negative. Regarding the DNA Test, the learned Judge held that in the facts and circumstances of the case, it would be appropriate to direct the concerned party to undergo the DNA Test.
5. Sri K.Someswara Kumar, learned counsel for the wife and children, contended that DNA Test is not conclusive of the paternity of the child. In Goutam Kundu v. State of W.B. , the father sought for the blood test of the child. It does not appear that the father sought for DNA Test. At any rate, much water has flown under the bridge after 1993 and in view of the march of science, it is now well settled that DNA Test more or less is conclusive prove of paternity. I therefore reject the contention of the learned counsel for the respondents that resistance to DNA Test by the respondents cannot lead to an adverse inference.
6. The learned counsel for the respondents also placed reliance upon BANARSI DASS v. TEEKU DUTTA . The Supreme Court observed that DNA Test to determine paternity is to be directed in deserving cases only and that the conclusiveness of the presumption under Section 112 of the Evidence Act cannot be rebutted by DNA Test. It was held that the proof of non-access between the parties to marriage during the relevant period is the only method to rebut the presumption of paternity. However, this view was rejected by the Supreme Court in NANDLAL WASUDEO BADWAIK v. LATA NANDLAL BADWAIK . In that case, the Supreme Court observed:
17. Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.
7. Thus, DNA Test would take precedence over Section 112 of the Evidence Act. If the 2nd daughter/ 4th respondent had been subjected to DNA Test, obviously the result of the DNA Test would have taken precedence. In the present case, the respondents resisted subjecting the 4th respondent to DNA Test. Therefore, DNA Test taking precedence over the presumption under Section 112 of the Evidence Act as held in NANDLAL WASUDEO BADWAIK (4 supra) has no application. However, it was already noticed through orders in Crl.R.C.No.1276 of 2010 that the Court may draw adverse inference as the respondents refused to submit the 4th respondent to DNA Test.
8. The learned counsel for the respondents submitted that in view of Section 112 of the Evidence Act, the presumption is in favour of the respondents that the 4th respondent is the biological daughter of the husband and that there is no room for adverse inference. On the other hand, Sri R.Dheeraj Singh, learned counsel for the husband submitted that in view of the orders in Crl.R.C. No.1276 of 2010, adverse inference deserves to be drawn against the respondents. He further submitted that in the absence of such a decision, adverse inference deserves to be drawn as the respondents evaded submitting the 4th respondent for DNA Test. With reference to the adverse inference, it was noticed in Laxmi Devi v. I.Begum that the non-examination of the party in support of his or her claim would entail drawing of an adverse inference. It was recorded that drawal of such adverse inference is only an abstract proposition of law in the realm of appreciation of evidence and that what sort of an adverse inference is to be drawn depends upon the facts and circumstances of the case. It was also noticed that if there was no reason for the refusal to examine a party, it would be legitimate for the Court to draw an adverse inference. In that case, the plaintiff was an illiterate lady. She allegedly executed an agreement to purchase the house in which she was residing as a tenant. The transaction was entered into by her husband on her behalf. Her husband dealt with the entire transaction. When the plaintiff did not examine herself but examined her husband who was in the know of affairs, the Andhra Pradesh High Court refused to draw adverse inference for the non-examination of the plaintiff.
9. In the present case, what the petitioner sought for is the blood sample of the 4th respondent to be examined with his blood sample to determine whether the 4th respondent is the biological daughter of the petitioner or otherwise. In view of the recent decision of the Supreme Court in NANDLAL WASUDEO BADWAIK (4 supra), it is clear that DNA Test is more or less accurate scientifically. The 4th respondent however declined to undergo such a test. I wholly agree with the contention of the learned counsel for the husband that the 4th respondent declined to undergo the DNA Test since the DNA would have shown that the petitioner was not the biological father of the 4th respondent.
10. The learned counsel for the respondents submitted that there is no evidence that the petitioner has no access to the 1st respondent during the relevant period leading to the birth of the 4th respondent. In view of various decisions referred to, it is evident that in the event of conflict between Section 112 of the Evidence Act and the DNA Test, the DNA Test takes precedence. The respondents cannot approbate and reprobate at one and the same time, refusing to undergo DNA Test on the one hand and invoking Section 112 of the Evidence Act at the same time. The respondents thus have failed to show that the 4th respondent is the biological daughter of the petitioner. The respondents are bound to show that the 4th respondent is the biological daughter of the petitioner where the petitioner is disputing the same. When the respondents have failed to do so, an adverse inference deserves to be drawn against the respondents. Even otherwise, where the petitioner is disputing and contending that he is not the biological father of the 4th respondent and where the 4th respondent is not entitled to the benefits under Section 112 of the Evidence Act, when the respondents failed to prove their case, the 4th respondent is liable to be treated as not the biological daughter of the petitioner. Consequently, grant of maintenance in favour of the 4th respondent payable by the petitioner is certainly unjustified and cannot be permitted.
11. So far as the income of the 1st respondent is concerned, the 1st respondent cannot be expected to adduce negative evidence that she did not have any income. It is for the petitioner to show that the 1st respondent has income of her own. The petitioner failed to prove the same. The Trial Court consequently is justified in awarding maintenance in favour of the 1st respondent as she admittedly is the wife of the petitioner. I may also clarify that the petitioner did not contend that the 1st respondent is not entitled to maintenance as she is unchaste and begot 4th respondent outside the wedlock. The petitioner therefore cannot raise such a contention now to deny maintenance to the 1st respondent.
12. I therefore consider that grant of maintenance by the Trial Court in favour of the respondents 1 to 3 is quite justified whereas the award of maintenance in favour of the 4th respondent by the Trial Court is unsustainable as the 4th respondent cannot be considered to be the biological daughter of the petitioner. This revision therefore is liable to be allowed so far as the award of maintenance against the 4th respondent by the Trial Court is concerned and is liable to be dismissed in respect of the award of maintenance in respect of the other respondents.
13. Consequently, this criminal revision case is allowed so far as the award of maintenance by the Trial Court in favour of the 4th respondent is concerned. The order of the Trial Court granting maintenance at Rs.1,000/- (Rupees one thousand only) per month in favour of the 4th respondent is found to be devoid of merits and is accordingly set aside. The order of the Trial Court granting maintenance at Rs.1,500/- (Rupees one thousand and five hundred only) per month in favour of the 1st respondent and at Rs.1,000/- (Rupees one thousand only) each per month in favour of the respondents 2 and 3 is confirmed. The revision is allowed in part accordingly. The miscellaneous petitions, if any, pending in this revision shall stand closed. _____________________ Dr. K.G.SHANKAR, J.
03rd June, 2014.
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